153 Iowa 199 | Iowa | 1911
Lead Opinion
At the outset of the transactions from which this controversy has arisen, the plaintiff, Charles H. Kinkead, was the owner of two hundred and seventy-six acres of land in Linn County,'and a house and lot in the town of Springville. A mortgage upon said land was made by Kinkead and wife to Helmer & Gortner to secure the payment of a note for $13,000, bearing date June 19, 1902, of which note and mortgage the defendant, Peet, thereafter became owner by assignment. Soon thereafter a second mortgage on the same property was made by Kinkead and wife to James K. Hakes to secure an indebtedness of $9,000. Later Hakes assigned this mortgage to Peet as collateral security upon a debt of his own. In
In reviewing a decree so entered upon a record such as is here furnished, we do not think this court is called upon to perform the functions of a master or referee in chancery, and state the account between the parties in detail. The items involved are hundreds in number, ranging from hog hooks and spinning wheels to blooded live stock, and from lumber wagons and harvesters to chickens and rat traps. They include, also, claims for rents and
The nature of the claims or credits demanded 'by the plaintiff is as follows: (1) For the value of the personal property alleged to have been turned over to or converted by the defendant. (2) For use and rents and profits of the land after plaintiff was ousted by defendant. (3) For waste committed upon the property while in defendant’s possession. On the other hand, defendant, while denying liability on a large part of these claims, asks to be allowed (1) for the amount of principal and interest unpaid on the first mortgage debt; (2) for the amount of unpaid principal and interest on the second mortgage debt; (3) for money expended in payment of plaintiff’s debts at his request; (4) for amount of the judgment interest and costs recovered by the wife of plaintiff against defendant and paid by him; (5) for costs of repairs on buildings during the defendant’s occupancy of the land; (6) for tiling and other improvements upon the land during said occupancy; (7) for taxes paid; (8) for labor and services expended by defendant in caring for the property; (9) for interest on each item charged in his account from date thereof to final decree.
As a starting point for the consideration of these matters, it is well to recall the situation in which the prior litigation had left plaintiff and defendant.
II. The bill of sale taken by defendant was made to cover all and every kind of personal property on the farm, among which it is conceded there was a drove of hogs, horses, cattle, vehicles, farm machinery, tools, and appliances with which the average farm is supplied. There was also a large field of corn, mostly unharvested, variously estimated at from one hundred and sixty-two to two hundred acres. No part of these things has ever been restored to the plaintiff,. and he is obviously entitled to credit therefor. Defendant concedes that he sold a part of the hogs
Coming next to the rental value of the farm since the ouster of plaintiff, we have to say it is shown to be not less than $3.37% per acre per year. Defendant will concede no more than $2.75, while plaintiff’s figure is $6.50. The testimony on both sides is largely of a partisan character, but the estimate above made is as near the proper figure as can be ascertained from the record. The matter of plaintiff’s claim for waste and damage to the realty will be considered in a subsequent paragraph of this opinion.
III. Of the claims asserted by the defendant, plaintiff concedes that upon March 1, 1905, when defendant first definitely asserted absolute ownership of the property, there was due to defendant upon the first mortgage debt principal and interest to the amount of $14,257.14, and upon the second mortgage debt to the amount of $5,124.46, and that defendant was also entitled to credit for moneys expended in payment of claims against plaintiff to the amount of $575, for expense of husking the corn crop $108.35, and for taxes paid. We may therefore pass these items as established by consent. There appear to be other items of costs and expenses paid by defendant for plaintiff arising from the divorce proceedings for which he should be given credit to the amount of $107.60.
The improvements made by the defendant were not made under any pretense or claim that as mortgagee in possession he was exercising his right and duty to preserve the estate from deterioration and decay, but he was stoutly denying plaintiff’s right therein, and asserting an absolute title in his own right. In Mahoney v. Bostwick, 96 Cal. 53 (30 Pac. 1020, 31 Am. St. Rep. 175), the defendant as in this case at bar took a deed absolute in form to secure the payment of the grantor’s debt. Hnder this deed, he obtained possession of the land, but repudiated the mortgage agreement, and claimed the property as
VII. The several claims of the parties for allowance of interest may be disposed of as follows: Compute the unpaid interest on the secured notes to March 1, 1905, the date when defendant ousted plaintiff and asserted title in himself. Aggregate the several allowances hereinbefore made to the plaintiff (except rents and profits), and having deducted from this sum the credit allowed defendant for money paid out and expended for plaintiff (not including the judgment obtained by Mrs. Kinkead), apply the remainder as a payment of that date on the mortgage debt. Compute interest on the remainder without compounding and without rests to the date of the final decree. Treat the yearly allowance for rents and profits, less taxes paid, as a payment made at the close of each twelve-month period, and compute interest thereon (at the mortgage rate) to date of decree, and, having applied the sum of these payments and interests to the sum of the mortgage debt and interest, the remainder will represent the amount required for redemption, save only the matter of defendant’s claim on account of the j'udgment recovered by Mrs. Kinkead. Eor this he should be permitted to recover the sum of $3,000, with interest thereon from the date when he actually paid
VIII. The rules stated and the conclusion reached in the foregoing paragraphs will result in materially reducing the amount required for redemption of the land as fixed by the court below. It follows that the decree appealed from must be reversed and cause remanded for adjustment of the accounting upon the basis hereinbefore indicated, taking into consideration rents and profits accrued and taxes
Reversed and remanded with. directions.
Dissenting Opinion
(dissenting). — I feel compelled to dissent from the majority opinion. So far as fact questions are concerned, there is much diversity and exaggeration in the evidence. I am impressed that the majority is unduly liberal toward the plaintiff in the allowances made in his favor. In view of the conflicting state of the evidence, I would not be willing to dissent from my brothers on that ground.' There are, however, two or three definite points wherein the majority opinion in my judgment fails to administer equity to the defendant.
I. I can see no reason, legal or equitable, why the defendant should not be allowed the full amount paid by him to the plaintiff’s wife, including the interest thereon. Defendant, Peet, obtained his deed of the farm in the fall of 1904, and obtained, possession of the farm thereunder in March, 1905. At the time he obtained his deed, the plaintiff Kinkead’s wife was prosecuting an action for divorce against him, and had caused a writ of attachment to be levied upon his property. It had been orally agreed between Kinkead and his wife that her alimony should be $3,000. On March 14, 1905, she brought an action against Peet to recover $3,000. She alleged that Peet had orally agreed with her to pay the same in consideration of her signing the deed and releasing the attachment. Peet denied then, and denies now, that he ever made such an ‘ agreement with Mrs. Kinkead. In the trial of such action the evidence was such as to have warranted a verdict by the jury for either party. The verdict was for the plaintiff, and the final outcome of the litigation was that Peet
II. When Peet took possession of the farm, the buildings thereon were in a dilapidated condition and in -urgent need of repair. Such repairs were made by Peet. The principal repair consisted in putting in a cement floor in a cow barn in lieu of an old plank floor which had completely rotted away. The actual expense of such repairs amounted to a few hundred dollars. These are disposed of in the majority opinion by offsetting them against alleged waste. I do not think this record would justify any allowance whatever to the plaintiff for alleged waste. Indeed, one of the claims of waste is that there were not sufficient repairs made. I think the defendant should be allowed his reasonable expenditure for the repairs shown.
III. The defendant caused about 1,100 rods of tiling to be put upon the premises at an expense of $400 or $500. This tiling was highly beneficial, and rendered tillable a portion of the ground the úse of which was of no value whatever prior thereto. This claim is disallowed by the majority on the theory that it involved an improvement rather than a repair. The line between repairs and improvement is not always easily drawn. In view of Kinkead’s own showing, “that everything he paid out was to be paid back,” we are not called upon to draw the line in the present instance. The rental value of the farm has been charged to the defendant in its actual condition, and this includes tile.
It seems to me inequitable to permit the plaintiff to take the land without repaying the expenditure for this marked benefit.